04/20/93 ANGEL DAVIS v. UNITED STATES

Appeal from the Superior Court of the District of Columbia; (Hon. Herbert B. Dixon, Jr., Trial Judge)

Before Terry, King, and Sullivan, Associate Judges.

The opinion of the court was delivered by: Terry

TERRY, Associate Judge : Appellant Davis was convicted of possession of heroin with intent to distribute it and possession of cocaine with intent to distribute it. *fn1 She contends on appeal that the trial court erroneously denied her motion for judgment of acquittal. Davis also asserts that the admission of certain testimony by her parole officer, whom the government called as a rebuttal witness, was improper for three reasons. First, she argues that it should have been excluded because it was not disclosed before trial as required by Super. Ct. Crim. R. 16 (a)(1)(A), and that its admission resulted in unfair surprise. Second, she maintains that it was improperly presented as rebuttal testimony. Finally, she contends that its admission violated her rights under the Sixth Amendment. We reject all of these claims of error and affirm both convictions. *fn2

I

Angel Davis and Norletta Jones were arrested on July 21, 1988, after the police executed a search warrant at the home of Davis' mother at 1117 Orren Street, N.E. Davis was present at the time of the search but identified herself to the police as Sabrina Baber. *fn3 In the course of the search, the police came upon a padlocked bedroom with a nameplate on the door on which was inscribed the name "Angel." Davis, pretending to be Sabrina Baber, told the police that the padlocked bedroom belonged to her sister Angel. Officer Kirk Delpo forced the door open, went inside, and found a denim jacket hanging on the door of a cabinet. *fn4 Examining the jacket, Delpo found in its pockets two brown paper bags. One of them contained 115 plastic packets of heroin; the other contained 36 plastic ziplock bags of cocaine in powder form. Another ziplock bag containing four packets of crack cocaine was found in a dresser drawer, and an additional packet of heroin was discovered under a candle holder.

The police also found in the same bedroom various papers and personal items bearing the names of both Angel Davis and Norletta Jones. Among these were an automatic teller machine card from a bank, a social security card, a calendar, a check-cashing card, and payroll check stubs, on each of which was written or imprinted the name "Angel Davis," as well as an automobile registration document, a traffic ticket, and several letters and other pieces of mail addressed to, or issued in the name of, "Angel Davis, 1117 Orren Street, N.E." Additional items included a bank statement and other pieces of correspondence addressed to Norletta Jones at an address on Clifton Street, N.W., as well as a checkbook with checks bearing Ms. Jones' name and the Clifton Street address. Finally, the police recovered a purse from the bedroom containing, among other things, drug paraphernalia (spoons, a pipe, and chemicals) and personal papers bearing Ms. Jones' name. A search of Ms. Davis incident to her arrest produced $341 in cash and the key to the padlock on the bedroom door.

At trial the government presented testimony from the officers who executed the search warrant and arrested Ms. Davis and Ms. Jones. The government's proof also established that the bags seized from the bedroom contained heroin and cocaine, and an expert witness testified that the quantity and packaging of the narcotics found in the denim jacket in the bedroom were consistent with an intent to distribute. Davis' defense was that the padlocked bedroom was not hers but that of Ms. Jones, and that she herself was living with her sister in Suitland, Maryland, a suburb of Washington, on the date of the search. Davis herself did not testify, but both her mother and her sister testified to this effect.

Norletta Jones testified in her own defense. She stated that the padlocked bedroom was hers, that the denim jacket was hers, and that the drugs found in the jacket were also hers but were solely for her personal use. She explained that Davis had the key to the padlock because Davis had borrowed her car that day, and all the keys were together on the same key ring. Jones testified that she kept official papers bearing Davis' name (e.g., Davis' social security card, bank card, and tax returns) in the bedroom. She said that she would typically collect mail for Davis, keep it in the bedroom, and then give it to Davis on weekends. Jones acknowledged on cross-examination, however, that the letters and other pieces of mail found in the bedroom bore postmarks ranging from January 28 through July 18, 1988.

In rebuttal the government called Davis' parole officer, Raymond Ward. *fn5 Mr. Ward testified, without revealing his occupation or the reason for his conversations with Ms. Davis, that on both July 14 and August 4, 1988, i.e., on dates before and after her arrest in this case, Davis was "required" to tell him her address and that Davis told him she was living at her mother's home at 1117 Orren Street, N.E.

II

Davis argues that the trial court erred in denying her motion for judgment of acquittal because there was insufficient evidence to connect her with the drugs found in the bedroom or to establish an intent to distribute those drugs. This argument is essentially frivolous. *fn6

The government's evidence at trial established, among other things, that Davis' name was on a nameplate affixed to the door of the bedroom containing the drugs, that she had the key to the padlock on that door, that her name was also written on the outside of the cabinet where the denim jacket was hung, that she attempted to deceive the police by concealing her identity and by telling them that the bedroom was her sister's, that important personal papers and other items bearing her name were found in the bedroom, that on several of these papers her name was followed by the Orren Street address, that the denim jacket in which most of the drugs were found was her size but was several sizes too big for her co-defendant, that she was present in the house at the time of the search, and that she told Mr. Ward, both before and after the date of the search, that she was living in that house. *fn7 The jury could reasonably conclude from this evidence that Davis was in constructive possession *fn8 of the drugs seized from the padlocked bedroom. The evidence raised a permissible inference that she was aware of the existence of the illegal drugs and that she was able to "guide destiny" *fn9 -- i.e., that she enjoyed "convenient access or ready accessibility" *fn10 by virtue of holding the key to the padlock on the door, and that she was therefore "in a position to exercise dominion or control" over the drugs. Greer v. United States, 600 A.2d 1086, 1087 (D.C. 1991).

Davis' corollary argument, that there was insufficient evidence to establish an intent to distribute these drugs, is even less substantial. The police retrieved a total of 151 packages of narcotics from the denim jacket, plus five more from other places in the same locked bedroom. The government presented unrebutted testimony by an expert on the distribution of illegal narcotics that the quantity and packaging of these drugs was consistent with an intent to distribute them. We have repeatedly held that the packaging of narcotics so as to make them ready for sale to individual purchasers is "strong evidence of an intent to distribute." Edmonds v. United States, 609 A.2d 1131, 1132 (D.C. 1992); accord, e.g., Chambers v. United States, 564 A.2d 26, 31 (D.C. 1989) ("The fact that the cocaine was in separate packages, rather than in one large mass, is evidence of an intent to distribute"); Shorter v. ...

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